Distinguished Guests, Members of the Bar, Ladies and Gentlemen.
Introduction — The Journey from Malaysian Law Conference to the International Malaysia Law Conference.
1. Good morning and a very warm welcome to the International Malaysia Law Conference (“IMLC”) 2016. To all our delegates and guests, selamat datang, huan ying, vanakkam and sat sri akal.
2. The Malaysian Bar is delighted to present our flagship biennial event, which now harks back 45 years. Our first Malaysian Law Conference was inaugurated by the 2nd Prime Minister, Tun Abdul Razak Hussein, on 15 July 1971. We have since had 15 Malaysian Law Conferences.
3. A critical survey of our Conferences would disclose a consistent and recurring focus on contemporary issues, changes in the legal landscape, challenges to the rule of law, and developments in professional practice and ethics. Our Conferences are well recognised for robust discourse, the frank exchange of ideas and engaging interaction, particularly between the Judiciary, private and public sector lawyers, in–house Counsel and law academics.
4. However, it is not in the ethos of the Malaysian Bar to remain static or to be in suspended animation. We are always willing to look within and beyond ourselves, to make a meaningful difference to our Members and the profession. We have never been fearful of new ideas or innovations.
5. In 2011, the Bar Council decided to re–brand and transform the Malaysian Law Conference and re–launch it as the International Malaysia Law Conference or IMLC. This was a calculated response to the swirling and rapid changes in the legal profession, both within and outside Malaysia. This included the globalisation of the law, the seemingly infinite reach of technology in legal practice as well as the borderless legal environment with the attendant liberalisation of legal services.
6. These challenges required a proactive response on the part of the Bar Council for the benefit of Members of the Bar. There was an urgent need for us to re–examine our priorities in light of the maelstrom of developments in the 21st century legal landscape.
7. This led to the 1st IMLC in 2012, under the banner “The Rule of Law and Economic Competitiveness”, which was a watershed event that addressed some of these burgeoning challenges.
8. The bar was then raised with the 2nd IMLC of 2014, entitled “Reshaping the Legal Profession, Reforming the Law”. This event drew a record number of participants and its versatile programme, which included cutting–edge fields of law, has been widely acclaimed.
9. In this 3rd edition of IMLC themed “Challenges of an ASEAN Community: Rule of Law, Business, and Being People–Oriented”, we deal with issues pertaining to the evolving legal and business environments in ASEAN, as well as issues on human rights, and key practice areas.
10. With seven plenary and 18 breakout sessions, featuring an impressive array of 90 dynamic speakers — who are some of the most respected legal luminaries, industry captains and prominent policymakers — I am confident that IMLC 2016 will not disappoint.
11. We are indeed honoured and delighted to have with us:
(1) The Right Honourable Chief Justice of Malaysia, Tun Arifin Zakaria, who will deliver the Keynote Address;(2) Tan Sri Razali Ismail, Chairman, Human Rights Commission of Malaysia (“SUHAKAM”) who will deliver the Conference Address;(3) Zainah Anwar, Director of Musawah and recipient of the Legion d’Honneur — the Government of France’s highest award. Zainah will deliver the 4th Raja Aziz Addruse Memorial Lecture.
12. I am also delighted with the opportunity we have had to collaborate with the ASEAN Law Association (“ALA”) and I wish to place on record the Malaysian Bar’s gratitude to our Chief Justice, Tun Arifin Zakaria, who is also the Chairman of ALA Malaysia, and his committee for their support.
ASEAN Economic Community
Distinguished guests, ladies and gentlemen,
13. IMLC 2016 is a foray into unchartered waters, with a theme centred on a pivotal regional dimension. It is aimed at encouraging Malaysian lawyers to venture beyond our domestic borders to the vibrant legal and business environments in ASEAN member nations.
But why ASEAN, and why ASEAN now?
14. ASEAN is the third largest populace after China and India, with more than half of the population under the age of 30, and 48% living in urban areas.
15. Between 2007 and 2015, ASEAN’s trade grew by US$ 700 billion, with intra–ASEAN trade comprising the largest percentage of ASEAN’s total share.
16. In 2015, the collective ASEAN economy was valued at US$ 2.4 trillion, making it the 3rd largest in Asia, and the 6th largest in the world.
17. Critically, 31st December 2015 was a defining moment for ASEAN, as the ASEAN Economic Community (“AEC”) was established. The AEC heralds a new highly integrated and cohesive political, social, economic and cultural power bloc. It envisions a regional market that allows for the free movement of goods, services, labour, investment and capital inter–se across the 10 ASEAN member states.
18. The AEC is poised to boost the expansion of domestic markets, and promotes the creation of regional businesses, which will invariably increase competition, within and without ASEAN. This in turn will require a more liberalised environment for improved and high quality legal services. Further, the impact of the establishment of the AEC on the rule of law, commerce and the general well–being of the ASEAN people cannot, and must not, be underestimated.
19. The AEC thus presents an enticing opportunity for Malaysian lawyers to capitalise on a newly expanded market. We certainly have some of the most outstanding lawyers in the region, and many top notch law firms. Some of our lawyers and law firms have already established an ASEAN footprint, and the AEC should be the much needed push for more to follow suit.
20. With this in mind, we hope that IMLC 2016 serves as springboard for delegates to seriously reflect on the benefits of ASEAN and the AEC. We must be brave enough to explore new horizons. We recognise that it will take time for the AEC to gain its foothold on the economies of the ASEAN nations and beyond, but the journey has already begun, and the question that we need to ask ourselves is, how can we be a part of it?
21. Are we, in the Malaysian legal profession, ready to deal with the challenges that AEC presents, and to seize the multitude of opportunities and reciprocities that may be open to us? It is our desire for IMLC 2016 to provide sufficient space for us to delve into these matters with some direction and clarity.
22. As part of this, and perhaps because of it, the need for the continuing professional development (“CPD”) of the Malaysian legal community is paramount. We, in the Malaysian Bar, must ensure that we have CPD programmes that cater for the potential opportunities coming out of ASEAN and the AEC.
Professional Development at the Malaysian Bar
23. It has been said,
“A lawyer is a kind of person who may be born, but a lot of making goes into a real lawyer, and in the end he is rather made than born.”[i]
24. At the 70th Annual General Meeting of the Malaysian Bar, it was resolved that a mandatory CPD Scheme be implemented on a staggered basis for Members of the Bar and pupils in chambers, with effect from 1 July 2016.
25. Pursuant to this, we have created infrastructures for:
(1) National CPD Camps to provide access to four hours of immersion training on basic and practical aspects in specific areas at a subsidised rate of RM27 per Camp. From 1 July to date, 20 well–received CPD Camps have been organised for 300 individuals thus far.(2) Secondly, CPD on Demand, an online training platform, launched in August 2014, now provides Members and pupils with access to more than 70 free online training videos under 25 titles that have been viewed more than 2,300 times to date.(3) Thirdly, we are focused on ensuring access to regular and affordable training for all Members. In the last CPD cycle, which concluded on 30 June 2016, our programmes benefited more than 20,500 participants by providing access to 564 training activities in the space of 24 months. This demonstrates a strong demand for regular, accessible and affordable training.(4) Fourthly, this week we see the launch of a free subscription–based online magazine called “Legal Craft & Such”. This monthly CPD publication, done in collaboration with Thomson Reuters, will give Members access to all things CPD, and to monthly articles on a variety of legal and non–legal content.
26. The Bar Council continues to look for innovative ways to offer legal education and training, and amongst the activities in the pipeline include working toward a primarily online Ethics and Professional Standards Course for our pupils which will launch in January 2017, and we are working with the College of Law Australia, to offer Members the opportunity to read for subsidised post–graduate qualifications.
27. The milestones that we have achieved with mandatory CPD must be followed with the implementation of the Common Bar Course (“CBC”) for all who aspire to enter the legal profession in Malaysia. A single uniform vocational training course, bench–marked on international standards, is required to deal with the perennial concerns over quality and standards, and to arm new entrants with the essential tools they need to be effective legal professionals.
28. It is noteworthy that the new Minister in charge of Law, Dato’ Sri Azalina Othman Said has expressed support for the CBC. We may also recall that the Chief Justice, Tun Arifin Zakaria, spoke in favour of the CBC at IMLC 2014 and has been very supportive of that initiative.
29. It is therefore clear that the Judiciary, the Bar and the Government consider the CBC as a necessity for the modern legal profession in Malaysia, to ensure that all new entrants to the Bar are trained and skilled to be effective and relevant in the global marketplace.
Ladies & Gentlemen
Access to Justice
30. As we seek access to regional growth opportunities, and we work to empower both current and incoming Members to make them future–proof, we cannot be oblivious to the overriding and permeating concerns on the rule of law. Lord Anthony Lester recently observed that “No law and no system of government can secure the rule of law unless it is supported by a culture of respect for the rule of law and unless men and women of integrity hold it in their DNA. But the system of government can help or hinder respect for the rule of law.” [ii]
31. A critical aspect of the rule of law is the existence of laws that recognise and protect the fundamental rights of individuals against each other and against the state. But it has been noted that “... such laws are valueless unless …all citizens have access to justice, and…. effective access to competent legal advice, and effective access to competent legal representation”.[iii] Access to justice is therefore central to the rule of law, and it is particularly indispensable for the impoverished and marginalised.
32. The role of the Bar to promote access to justice is universally exhorted in Article 4 of the United Nations Basic Principles on the Role of Lawyers[iv]. For the Malaysian Bar, this universal principle finds it voice in one of our express objectives found in Section 42(1)(h) of the Legal Profession Act 1976.[v]
33. Now in this connection, the National Legal Aid Foundation — Yayasan Bantuan Guaman Kebangsaan (“YBGK”) — is one of the most important access to justice initiatives within our criminal justice system. This government–funded legal aid scheme, for the legal representation of accused persons in criminal matters, is subject to a low threshold means–test for criminal trial representation and complements the Malaysian Bar’s proud pioneering and self–funded legal aid scheme for all legal matters that was established in 1983.
34. YBGK is a joint enterprise between the Government and the three Bars of Malaysia, viz, the Malaysian Bar, Sabah Law Association and the Advocates’ Association of Sarawak and commenced operations in 2012. The three Bars have to date trained a pool of 1,804 lawyers who are paid a nominal fee for handling YBGK files. Between April 2012 and December 2015, YBGK lawyers handled a total of 535,986 cases, which is a remarkable average of 142,903 cases per year, or 11,908 cases per month!
35. Recently, there have been concerns over the delayed payments to YBGK lawyers and the possible adverse consequences that this may have on the YBGK scheme. The Bar Council has been working with the YBGK administration to resolve the matter. We have also kept the Honourable Attorney–General (who is the Chairman of the YBGK Board) and the Minister in charge of Law (who is the Patron of YBGK) notified of the delayed payments, and have sought their assistance to resolve this matter.
36. The delay in payments must be dealt with immediately in the interest of impecunious members of the public who rely on YBGK for their access to justice, and the YBGK lawyers who have already discharged their legal duties. The YBGK success story should not and cannot be derailed by financial impediments caused by administrative delays. In this regard, we welcome the reiteration by the Honourable Attorney–General last week of his commitment towards the continued progress of the YBGK Scheme and his pledge to resolve the backlog in payments to YBGK lawyers.
37. It is noteworthy that despite these outstanding payments, YBGK lawyers have continued to provide legal services, and in some states, have even taken on more remand cases in 2016 than in 2015. The commitment and the spirit of volunteerism of our YBGK lawyers are commendable, and we look forward to more lawyers stepping–up to the plate.
Independence of the Bar
38. The independent institutions of state are vital for the functioning of any democratic nation that upholds the rule of law. The Judiciary, enforcement agencies such as the Malaysian Anti–Corruption Commission and regulatory bodies such as Bank Negara Malaysia are such institutions. Their independence must be protected, preserved and strengthened. In this relation, the 27th President of the Malaysian Bar, Dato’ Ambiga Sreenevasan, said at the opening of the 2007 Malaysian Law Conference that “Independent institutions are not the weakness of the government, but a sign of its strength”.
39. Independent institutions are a check and balance against abuse of power, and act to promote transparency, accountability and good governance. They are therefore vital to the well–being of the state and its citizens. For this reason, at this conference, we have dedicated a session on the independence of institutions in a democracy.
40. For more than 69 years, the Malaysian Bar has been an independent institution and a self–regulating body under the Legal Profession Act 1976. Our objectives are crystallised in Section 42(1) of the Act and our combined functions include regulatory and practice matters, Members’ interest, and a societal or public interest role. We have, and continue to discharge, these functions without fear or favour, as obedient servants of the rule of law.
41. There are currently certain disturbing proposals to amend the Legal Profession Act 1976. These proposals will radically overhaul the process for the elections of Bar Council members and Office–Bearers of the Malaysian Bar, reduce the voting rights of Members, impose punitive quorum requirements for general meetings, and allow for non–elected government representatives to sit in the Bar Council. The Bar Council has vehemently opposed these proposals, which are still not finalised. The Government is considering the Bar’s objections.
42. The proposed amendments challenge the essential character of the Bar and brings into question the very rationale of an independent legal profession in Malaysia.[vi] The proposals are a blatant attempt to curb the active discharge of the functions of the Bar Council, particularly in our societal role. These have caused considerable disquiet amongst Members of the Bar throughout the country, and even amongst members of the public.
43. Indeed, senior Cabinet Minister and our former Law Minister Datuk Seri Nazri Aziz has also recently expressed his unreserved and categorical objections to the proposals, and we thank him for his support.[vii]
44. Whatever may be the motivation for this flagrant attack on our independence, the proponents of it will do well to pay heed to what Lord Brougham said in the 19th century:
“No greater misfortune can befall the administration of justice than an infringement of the independence of the Bar …”[viii]
And, the eternal words of Chief Justice Bhagwati, uttered more recently should also not be forgotten:
“… Those that fight zealously for the independence of the judiciary must surely know that is not enough. We need to be equally over–zealous to fight for the independence of the Bar. To those who said ‘hands – off the judiciary’, I add ‘hands off the Bar’”
45. I am pleased to report, that the Bar Council’s campaign opposing the proposals — “Hands off the Malaysian Bar” — has today garnered worldwide support from 19 international and national law organisations and countless local civil society groups. The Malaysian Bar is truly grateful for their support.
I invite members of the Malaysian Bar to join me in thanking them in the usual way.
46. In this time of grave test of the independence of the Malaysian Bar, I wish to bring to your attention a letter that I received two days ago from the International Association of Lawyers (“UIA”), which is one of the oldest and foremost international law organisations in the world.
The letter reads as follows:
“Paris, September 19, 2016”
“Dear Mr President,
During its 60th Annual Congress in Budapest, the Union Internationale des Avocats (UIA), in cooperation with LexisNexis, will award its first rule of law Award to recognize an outstanding contribution to the advancement of the rule of law within the legal community.
On behalf of the UIA, it is a great pleasure and honour for me to inform you that the Malaysian Bar has been selected by our Association as first recipient of this Prize, in order to recognize its strong and unfailing commitment to the defence and promotion of human rights and the rule of law.
With this award, the UIA intends to support and encourage the Malaysian Bar which, since its creation and despite adverse circumstances, has courageously and constantly stood for the core values of the legal profession that the UIA promotes and defends.”
47. The Malaysian Bar is truly humbled and honoured by this generous recognition by the UIA, particularly at this critical time for us. It will certainly serve to further strengthen our resolve and galvanise us in our efforts to repulse the attempts to interfere with our independence.
As we journey through IMLC 2016, I hope you will be edified by what you see and hear, and that this Conference contributes to the development of prospects for personal and professional growth.
It was James Madison who said in 1822[ix],
“Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”
It is events such as this, that remind us to step out of and step beyond what we know and venture a little into the unknown, sometimes onto paths less trodden, so that we can arm ourselves against ignorance, and then share that empowerment with those around us.
On behalf of the Malaysian Bar and the Bar Council, I extend my sincerest appreciation to:
(1) Honey Tan Lay Ean and HR Dipendra, Co–Chairpersons of the IMLC 2016 Organising Committee, for their excellent stewardship and efforts in leading the team in the organising of yet another successful IMLC;(2) The staff of the Bar Council Secretariat, so ably led as always by Chief Executive Officer Rajen Devaraj; and(3) The many volunteers who have generously offered us their time and energy for today and the next two days.
I also wish to convey the appreciation of the Malaysian Bar to all the sponsors of this conference for their support and generosity.
I wish all delegates a meaningful and fruitful conference.
Thank you very much.
21 September 2016
[i] Hidayatullah, Former Chief Justice of the Indian Supreme Court (in A Judge’s Miscellany)
[ii] Lord Anthony Lester, Five Ideas To Fight For (Oneworld Publications, 2016) at p. 205
[iii] Lord Neuberger, 20 June 2014
[iv] “Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.”
[v] “to make provision for or assist in the promotion of a scheme whereby impecunious persons may be represented by advocates and solicitors ”.
[vi] Memorandum On The Independence Of The Bar And The Legal Profession In Malaysia (1996) 25(3) INSAF Pg.1–13.
[vii] “Nazri opposes amendments to Legal Profession Act”. The Star Online, 3 September 2016.
[viii] 1864) 40 The Law Times 16–18.
[ix] Epilogue: Securing the Republic in Chapter 18, The Founder’s Constitution